By Doyice Cotten

Lori Hassler joined Results by Design, LLC in order to begin a training regimen in the hope of “toning up” for her daughter’s upcoming wedding. She listed her goals on intake paperwork as a tighter abdomen, muscle definition in arms, and more energy. She was aware that she suffered from diabetic kidney disease. The trainers put together a coordinated exercise program, nutrition plan, and dietary supplementation (vitamins) regimen. After about six weeks on the plan, Hassler was hospitalized with acute kidney failure, requiring extended dialysis and eventually a kidney transplant (Hassler v. Results By Design, LLC, 2019).

Document Language

Prior to beginning the plan, Hassler signed a waiver of liability (actually an assumption of risk) that included the following language:

Because physical exercise can be strenuous and subject to risk of serious injury, Results by Design Fitness, LLC urges you to obtain a physical examination from a doctor before any exercise equipment or participating in any exercise activity.

….

Any recommendation for changes in diet including the use of food supplements, weight reduction and/or body building enhancement products are entirely your responsibility and you should consult a physician prior to undergoing any dietary or food supplement changes.

The intended “exculpatory language” was limited to:

You (each member, guest, and all participating family members) agree that if you engage in any physical exercise or activity, or use any club amenity on the premises or off premises including any Results by Design Fitness, LLC, sponsored event, you do so entirely at your own risk. …. You agree that you are voluntarily participating in these activities and use of these facilities and premises and assume all risks of injury, illness, or death.

The major problem with the “waiver” was that it was actually an assumption of risk. In Kentucky, however, since the adoption of the comparative fault doctrine, the doctrine of assumption of the risk is no longer viable in negligence cases. Consequently, the assumption of risk document was declared void and unenforceable by both the trial and the appellate courts.

Introduction of the Assumption of Risk Document

Whether the trial court erred in allowing the jury to see the un-redacted assumption of risk document was at issue. Plaintiff argued that the document contained “highly prejudicial language which impermissibly allowed the jury to apply the doctrine of assumption of the risk to her claim.” The court allowed the un-redacted agreement to be introduced because it provided relevant evidence as to the whether the health club had breached its standard of care and as to whether Hassler exercised ordinary care for her own health.

The court felt that an admonishment by the court would enable the jury to understand that the function of the document was not presented as a waiver of liability. The admonishment was:

This is not a waiver as a legal matter. The language in there may or may not be important. That’s for you to decide. It is the language that was part of this document that the parties agree was signed by this witness. It does not have the effect of being a waiver as a matter of law. And that’s not anything for you to be concerned about. That’s a decision that the judges make and the legislature and whoever else. For our purposes, that language is something you absolutely may be able to consider and give it whatever weight that you think is appropriate, but you may not consider it as having the legal authority or legal effect of waiving liability.

The Ruling

The appellate court was convinced that the trial court action in allowing the un-redacted document to be introduced to the jury (with admonition) was justified because it provided evidence regarding the standard of care and as to whether Hassler exercised ordinary care for her own health. The appellate court agreed with the jury ruling that the health club acted responsibly, was not practicing medicine, and warned the client appropriately.

Risk Management Take-away

A good waiver is more than just an assumption of risks by the participant. While in many states, an assumption of risks statement will help protect against liability for injuries caused by the inherent risks of the activity, it will not usually protect against liability for negligence. You need both an assumption of inherent risks and a waiver of liability for negligence.

Photo Credit: Thanks to Tyler Read via Flickr.